Broken Courts – Non-Lawyer Judges Must Go

One of New York’s peccadilloes is that you don’t have to be a lawyer to be a judge in our local courts.  This was the focus of a series of New York Times articles, calling them “tiny courts” with “abuses of law and power.”

These are New York’s town and village courts, or justice courts, as the 1,250 of them are widely known. In the public imagination, they are quaint holdovers from a bygone era, handling nothing weightier than traffic tickets and small claims. They get a roll of the eyes from lawyers who amuse one another with tales of incompetent small-town justices.

The NYT quote is a little misleading (as newspaper reporters too often are) in that these justice courts have preliminary jurisdiction over serious criminal case, including murder, setting bail and pre-indictment proceedings.  In other words, these non-lawyer judges preside over people’s lives in the most serious situations as well as the trivial.

These aren’t the places where big-time New York lawyers practice, but where ordinary people go in large numbers outside of the cities to deal with their more mundane problems and issues.  So while they aren’t likely to be involved in any precedent setting cases, the impact of justice courts run be non-lawyers on the lives of ordinary people can be pervasive.

The argument in favor of keeping this archaic system is that the qualities that make up a good judge, being fair, independent and ethical, are personal ones, unrelated to a legal education.  There is a deeper federalist sense to it, however, where tiny governments run towns and villages like little clique fiefdoms with little people swelling with petty power want to maintain iron-clad control over their tiny piece of earth.

The stories of abuse of power, gross impropriety and ignorance in New York’s tiny courts are rampant. 

And several people in the small town of Dannemora were intimidated by their longtime justice, Thomas R. Buckley, a phone-company repairman who cursed at defendants and jailed them without bail or a trial, state disciplinary officials found. Feuding with a neighbor over her dog’s running loose, he threatened to jail her and ordered the dog killed.

“I just follow my own common sense,” Mr. Buckley, in an interview, said of his 13 years on the bench. “And the hell with the law.”

This is a fairly typical example of the problems faced in a justice court.  But that’s not to say that the locals aren’t happy this way, as shown in this 1994 article detailing the example of Laurence Hancock, then 83, a non-lawyer judge in Dutchess County.

When he was first elected in 1937, he conducted court in his mother’s kitchen, was paid $5 a case and settled a half-dozen civil complaints each week. These days, there is a gleaming courthouse in town and Mr. Hancock dons a black robe before hearing a nearly endless stream of cases. But little else has changed in 56 years: Judge Hancock still pounds his fist like a gavel and throws his voice like a punch. And the voters are clearly satisfied with his decisions; he has won 14 consecutive elections, including several races against lawyers.

The judge becomes a known quantity and is often respected by his neighbors, who are hardly put off by the fact that justice is meted out by one of their own.  They tend to reflect a sense of rough justice that meets the expectations of the locals, who generally fair well in court with their neighbor on the bench as long as they are all friends.

On the flip side, things don’t always go as well for others passing through the jurisdiction, or those who aren’t friendly with the judge or reigning regime.  But then, one could well argue that the same is true with lawyer judges, who have proven that they too can show favoritism, demonstrate inappropriate temperament and engage in wrongful, even criminal conduct.  A law degree hardly make a person immune from abusing power.

Faced with the New York Times series and the multitude of examples of justice gone awry, Chief Judge Judith Kaye issued  an action plan (pdf) to deal with justice courts in November, 2006.  This action plan created a new position of a “supervisory judge” to oversee the justice courts and their non-lawyer judges.  But avoiding controversy, non-lawyer judges remained in place.

In October, 2006, President Barry Kamins of the New York City Bar Association formed a task force to consider the justice courts and the systems “action plan.”  Last month, the task force issued  its report. 

While the tone of the report is even, the meaning is significant.  Non-lawyer judges have fundamentally ignored all the “niceties” of the Constitution, law and procedure that we squabble about every day.  Indigent defense is virtually non-existent.  The cop who made the arrest or issued the ticket is tapped to negotiate and prosecute the case, and this would be a local cop with whom the judge is quite cozy and comfortable.  Since the justice courts often meet only a once a month, preliminary hearings (without lawyers or interpreters) will happen when they get around to it.  The list goes on. 

The concepts of due process, constitutional protections and even what constitutes basic fairness to either the untrained sensibilities of non-lawyer justices or the tyranny of the power-hungry locals.  Of course, they don’t see it that way.  There is a sublime irony in ignorance; you don’t know what you don’t know.

While locals may enjoy, indeed prefer, rough justice as meted out by one of their own, and believe that the law should not be so complicated that it requires years of schooling and experience before one is prepared to deliver it, non-lawyer justices are not up to the task if we expect justice, as we understand it, to happen.

Unfortunately, the task force report accommodates the lack of political will of New York’s court system and Legislature in ridding the state of this farce.  Rather than calling for the elimination of non-lawyer justices, it attempts to provide a work-around in criminal matters that would transfer criminal cases to real courts with real judges.  See Recommendation 1, page 31.  According to one’s standpoint, this reflects a practical acceptance of the fact that New York is not going to buck the desires of locals to maintain control over their courts, or an abdication of responsibility to assure that a court system function in a manner consistent with the law and Constitution.

There are some practical problems with requiring justice courts to have lawyer judges, primarily stemming from the lack of lawyers in rural upstate counties willing to serve (since it impacts on a lawyer’s ability to represent clients before those courts).  But these problems seem to militate more in favor of eliminating courts that can’t function properly rather than accommodating them. 

There are a few inevitable conclusions that must be made in light of the overwhelming evidence from numerous sources.  First, non-lawyer judges are unable to perform their function consistent with the law and Constitution.  They simply don’t know how, even if they are so inclined, and there is no quickie training solution that will provide these justices with the training and experience necessary to mete out justice in any cognizable fashion. 

Second, the desire for local justice reflects a serious threat in a constitutional democracy.  Justice is not what the local residents want at any given time against any given defendant.  The year of one’s life in jail in an upstate county is still a year in jail.  The garage mechanic, or housewife, or librarian justice is not equipped to sentence another person to incarceration based upon local feelings of rage or retribution. 

Third, and most importantly, the entire concept of local government bears a closer resemblance to a “banana republic” than a Jeffersonian image of America.  While local residents may willingly subject themselves to incompetent and ignorant management of their affairs, and the taxation that pays for it, defendants before their courts have no voice in the decision.  It is fundamentally wrong to subject people to a system of justice with the same power as a legitimate system but neither the qualifications nor competence to fulfill its mission.

It is time to put an end to non-lawyer justices in New York.  It is time for the Chief Judge to stop pretending to be a politician and start acting like the head of a legitimate court system.  And it is time for the New York State Legislature to demonstrate the political will to end a dangerous archaic system. 

Of course, this won’t happen.  No one has the will to tell the unpleasant truth.  Instead, we pander to the lowest common denominator.  Again.

7 thoughts on “Broken Courts – Non-Lawyer Judges Must Go

  1. bond

    You are confused, The law is not a monopoly for Lawyers and the ABA, but writted for all of us.
    Are forefather were aloud to practice law after studying law themselve.
    It is important that non lawyer be aloud to preside over court. Hopefully soon the supreme court as well. There are many intelligent PHD (better educated than JD) who would qualify.
    Anyone, lawyers and non lawyers should be aloud to practice law.
    To prevent incompetence, lawyers and judges should be aloud to be sued for malpractice for any cases lost due to incompetence.
    There should be a law to change the legal jargon to English so that everyone with a high school degree can understand it.

    Lawyers only go to school for three years after college and many refuses to take their board certification in their respective field. All they do is take a Bar exam which is valid for life which is grossly inadequate.

  2. SHG

    You, amigo, are exhibit A.  Never (and I mean this sincerely), never go into court without a lawyer.  You will never come out.

  3. Jdog

    As is true for many. Hell, I didn’t go into a (sympathetic; I’d known the guy for ten years, and he knew I was, as the law-talking guys say, factually innocent, as did his boss) badged-guy “interview” without a good attorney, and all three of us knew (see above for one reason) that the fix was in.

    This isn’t because I’m intelligent or wise (a matter of some dispute; I’m skeptical). It’s because I’m not that kind of idiot.

    Serious (albeit hypothetical) question, just for the heck of it: you, with, err, more than a trivial amount of experience with the system, are invited to an “interview,” which you’ve decided to take: you going alone?

    Short form — yeah. In my amateur opinion, and all; even a baby cop or baby prosecutor would eat him alive. He’s trying to negotiate with the universe that he think exists, and that only works for professional writers. And only when they get to edit themselves.

  4. SHG

    It’s Dunning-Kruger meets fairland.  And it happens all the time.  It gets tedious after a while, and my days of ‘splaining it are over.

  5. DJH

    I was a non-lawyer Judge In Massachusetts for 14 years. I had to pass a written and oral exam before presiding Judge who was an Attorney, selected by the governor’s council. I was appointed in a ‘shiretown’ or county seat and could preside over minor civil and criminal matters. I wasn’t even aware of these special powers of a county seat Justice of the Peace. The law for appointment is still on the books. In 1978 the courts were transfered from county to state control. I was one of the last ones appointed. I was quite busy and never had a problem. I tried to keep costs down whereas the liberals want to make courts a big business. At one time most judges were not lawyers.

  6. SHG

    I tried to keep costs down whereas the liberals want to make courts a big business.

    The idea that judges have a role, any role, in the financial aspect of government reflects a fundamental misapprehension of the separation of powers and role of the judiciary.  The cost of government plays no role, either way, in the administration of justice.

  7. Sojourner

    Bravo Scott. There is no such thing as bargain basement justice. (Although there are a lot of people trying to sell it.)

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